Kulwant Singh and Others vs Surjit Singh

Sabina, J.—Petitioners have preferred this petition u/s 482 of the Code of Criminal Procedure, 1973 for quashing of criminal complaint No. 67/2007 dated 30.4.2007 (Annexure P-1) and all the subsequent proceedings arising therefrom including summoning order dated 17.5.2011 (Annexure P-2). Case of the complainant, in brief, is that the complainant was owner of the land in question. The land belonged to Harijan Cooperative Society Ltd. and had been allotted to the father of the complainant. After the death of Ralla Singh, father of the complainant, he (complainant) become member of the society. Complainant remained in possession of the land till June, 2004 but was forcibly dispossessed by the accused in connivance with each other. In December, 2006, accused had started to raise more construction over the land in dispute.

Learned counsel for the petitioners has submitted that the complainant had executed agreement to sell in favour of petitioners No. 2 and 3 on 6.5.1999 (Annexure P-3). Complainant had executed affidavit (Annexure P-4) on the same day that in future he would have no concern with the suit land.

Learned counsel for the respondent, on the other hand, has submitted that disputed questions of fact were involved in this case and this petition was, thus, liable to be dismissed.

In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, the Apex Court has held as under:-

The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers u/s 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-

(1) Where the allegations made in the first information report or the complainant/respondent No. 2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

In the present case, Annexure P-3 is the agreement to sell dated 6.5.1999 executed by the complainant in favour of petitioner No. 2 Paramjit Singh and petitioner No. 3 Kulvinder Singh with regard to the land in question. A perusal of the said agreement dated 6.5.1999 reveals that the entire consideration had been received by the complainant. Possession was also handed over to petitioners No. 2 and 3 by the complainant. Annexure P-4 is the affidavit executed by the complainant at the time of the execution of the said agreement to sell. A perusal of the same reveals that the complainant had stated that the entries in the khasra Girdawari had been changed with his consent. The execution of agreement to sell (Annexure P-3) and affidavit (Annexure P-4) has not been disputed by the counsel for the respondent during the course of arguments. Thus, it is evident from Annexures P-3 and P-4 that petitioners No. 2 and 3 are in possession of the land in question on the basis of agreement to sell. The complainant has received the entire consideration from petitioners No. 2 and 3 at the time of execution of agreement to sell. In these circumstances, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law. Accordingly, this petition is allowed. Criminal complaint No. 67/2007 dated 30.4.2007 (Annexure P-1) and all the subsequent proceedings arising therefrom including summoning order dated 17.5.2011 (Annexure P-2) are quashed.